What Is a Petition for Review After a BIA Decision?

A petition for review is the only way to get a federal court to examine a removal order, and it must be filed in the court of appeals within 30 days of the Board of Immigration Appeals’ decision. Unlike an appeal to the Board, filing it does not stop your removal. ICE can execute the order while the petition is pending unless the court grants a stay, which is why experienced counsel files a stay motion on the same day as the petition. Understanding what the court can and cannot do before you file saves you from spending the deadline on an argument the court is not allowed to hear.

Where and when to file a petition for review

Under INA 242, a petition for review is filed in the U.S. court of appeals for the circuit in which the immigration judge completed the proceedings, not where you live now or where you are detained. Cases heard by the Arlington or Sterling, Virginia courts go to the Fourth Circuit, and New York cases go to the Second Circuit. The 30-day deadline is strict and is not extended because you filed a motion to reopen or reconsider with the Board. If you file such a motion, you need a separate petition for review of the Board’s ruling on it, with its own 30-day clock.

The federal district courts have no role. Congress channeled all review of removal orders into the courts of appeals, so a habeas petition or an APA suit cannot be used to attack the removal order itself, although our habeas corpus practice can still challenge your detention in district court while the petition for review proceeds.

Our petition for review and BIA appeals team handles filings in the Fourth and Second Circuits, where most of our clients’ cases are heard, and we calendar the deadline from the date on the Board’s decision the day it arrives. If the Board dismissed an appeal filed under the process in our BIA appeal guide, the petition for review is the next and final step.

Getting a stay of removal

A timely petition for review does not automatically stay removal. You must ask the court for a stay, and the standard, set by the Supreme Court in Nken v. Holder, has four parts: a strong showing that you are likely to succeed on the merits, irreparable harm if removed, the balance of hardships between you and the government, and the public interest. Removal itself is not automatically irreparable harm under Nken, so the motion must explain concretely what you would lose: separation from family, exposure to persecution, inability to pursue the case from abroad.

Some circuits have standing arrangements under which the government agrees not to remove a petitioner while a stay motion is pending, but those arrangements vary and should be confirmed for your circuit. In the meantime, ICE check-ins continue and should be attended with counsel aware of the schedule.

What the court of appeals reviews

The court reviews the administrative record, meaning the transcript, exhibits and decisions from the immigration court and the Board. It does not take testimony or accept new evidence. It reviews only the issues you raised before the Board, because the statute requires exhaustion of administrative remedies. The Supreme Court held in Santos-Zacaria v. Garland that this exhaustion requirement is not jurisdictional and does not require you to seek reconsideration from the Board, but issues never presented to the Board are still generally lost.

Standards of review are deferential on facts and independent on law. Factual findings, including credibility, are upheld if supported by substantial evidence, which means the court will reverse only if any reasonable adjudicator would be compelled to reach the opposite conclusion. Legal questions are reviewed de novo, with some deference to the Board’s reasonable interpretation of ambiguous statutory terms in published decisions.

Limits on the court’s jurisdiction

The statute strips the courts of jurisdiction over certain categories, and these limits shape what a petition can argue:

• Discretionary decisions, such as the ultimate denial of cancellation of removal, adjustment or waivers as a matter of discretion, are not reviewable.
• Removal orders based on certain criminal convictions are not reviewable as to the facts.
• Expedited removal orders are reviewable only in very narrow circumstances.

Constitutional claims and questions of law survive all of these limits. Whether a given set of facts meets a legal standard, such as whether the hardship found by the judge rises to the level of exceptional and extremely unusual, is a question of law the court can review. Our guide to who qualifies for cancellation of removal explains that standard, and a petition for review built around the legal standard rather than the weighing of equities has a far better footing.

How the case proceeds and how it ends

After filing, the government files the certified administrative record, and the court sets a briefing schedule. You file an opening brief, the government responds, and you may reply. Many circuits hold oral argument in a portion of immigration cases; others decide on the briefs. Some circuits also have mediation programs in which the government may agree to remand the case to the Board to fix an error, which can be a faster win than a published opinion.

The court can deny the petition, leaving the removal order in place; grant it and remand to the Board for further proceedings consistent with its opinion; or dismiss it for lack of jurisdiction. A remand does not grant relief; it returns the case to the Board or the judge with the error corrected, and the Board may rule against you again on other grounds. Timing depends entirely on the circuit’s docket, and there is no premium processing.

If the Board dismissed your appeal within the last 30 days, contact Capitol Law Partners immediately so the petition for review and a stay motion can be filed before the deadline. Schedule a consultation.

This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by this communication.

Attorney Sena Sahin. Clear advice for individuals, families, and business owners.

Need help with this topic? See our BIA appeals and petitions for review page or schedule a consultation.